1. The case originated in an application (no.
68707/01) against the Italian Republic lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by three Italian nationals, Mr Roberto Gamberini Mongenet,
Mr Rolando Gamberini Mongenet and Mr Rodolfo Maria Gamberini Mongenet (“the
applicants”), on 22 February 2001.

2. The applicants, three brothers, were represented
by the third applicant, a lawyer practising in Rome. The Italian Government
(“the Government”) were represented by their successive Agents,
Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents,
respectively Mr V. Esposito and Mr F. Crisafulli.

3. On 18 March 2004 the Court (First Section)
declared the application admissible.

4. On 1 November 2004 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly
composed Third Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were respectively born in 1938,
1943 and 1948 and live in Rome.

6. The applicants' father was the owner of a flat
in Rome, which he had let to V.D.C.

7. In a writ served on the tenant on 24 January
1984, the applicants' father informed the tenant that he intended to
terminate the lease on expiry of the term and summoned him to appear
before the Rome Magistrate.

8. By a decision of 17 April 1984, which was made
enforceable on 2 May 1984, the Rome Magistrate upheld the validity of
the notice to quit and ordered that the premises be vacated by 16 April
1985.

9. On 2 May 1984, the applicants' father served
notice on the tenant requiring him to vacate the premises.

10. On 3 April 1987, he informed the tenant that
the order for possession would be enforced by a bailiff on 12 May 1987.

11. Between 12 May 1987 and 29 March 2001, the
bailiff made forty-six attempts to recover possession. Each attempt
proved unsuccessful, as the applicants' father was not entitled to police
assistance in enforcing the order for possession.

12. In the meanwhile, on 14 February 1992, the
applicants' father died and the applicants inherited the flat.

13. On 18 July 1998, they became party to the
eviction proceedings as heirs.

14. On an unspecified date of April 2001, the
applicants recovered possession of the flat with the assistance of the
police.

II. RELEVANT DOMESTIC LAW

15. The relevant domestic law and practice is
described in the Court's judgment in the case of Mascolo v. Italy (no. 68792/01, §§ 14-44).

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

16. In their observations on the merits, the Government
argue that domestic remedies had not been exhausted on the grounds that
the applicants had failed to seek reimbursement of damages before the
national courts under Article 1591 of the Civil Code.

17. As far as the Government's arguments have
to be considered as a preliminary objection, the Court observes that
it was not raised, as it could have been, at the time of the admissibility.
Therefore, the Court considers that the Government is estopped from
raising objections to the admissibility at this stage of the procedure.

II. ALLEGED VIOLATION OF ARTICLE
1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION

19. The applicants complained of their prolonged
inability to recover possession of their flat, owing to the lack of
police assistance. They alleged a violation of their right of property,
as guaranteed by Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled
to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of international
law.

The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.”

20. The applicants also alleged a breach of Article
6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal...”

22. The Court has examined the present case and
finds that there are no facts or arguments from the Government which
would lead to any different conclusion in this instance. It notes that
the applicants had to wait approximately thirteen years and eleven months
after the first attempt of the bailiff before being able to repossess
the flat.

Consequently, there has been a violation of Article
1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present
case.

III. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

23. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Pecuniary damage

24. The applicants sought, firstly, reparation
for the pecuniary damage they had sustained. They proposed two means
of calculations:

- either the difference between what the applicants
could have obtained in government bonds if they could have sold the
flat and the rent paid by the tenant which consisted in the sum of 108,117,000
Italian lire (ITL);

- or the difference between the market value
rent – as estimated by an expert for the year 1992 – and the rent
imposed by law for a period of time of one hundred eight months which
consisted in the sum of ITL 110,592,000.

25. The Government contested those claims. They
maintained that the applicants failed to seek reparation for the damages
she suffered before the national courts under Article 1591 of the Civil
Code. Yet, the Government consider that the applicants failed to adduce
any reason that they were unable to make use of such a remedy. Accordingly,
their claims must be rejected.

26. The Court observes that the Government have
not put forward any argument regarding the possibility that appears
to have been developed in the case-law of the Court of Cassation of
suing the State for damages following an unjustified lack of police
assistance (see Mascolo cited above, §§ 34-44).

27. Having regards to the first means of calculation
proposed by the applicants, the Court finds no causal link between the
violations it has found and the alleged pecuniary damage. Therefore
the Court rejects it.

28. Having regards
to the second means of calculation proposed by the applicants, the Court
notes that they can bring an action in the civil courts under Article
1591 of the Civil Code claiming compensation from their former tenant
for the loss incurred as a result of the property being returned late.

29. The issue in the present case is the damage
arising from the unlawful conduct of the tenant, who, irrespective of
the State's cooperation in enforcing the court-ordered eviction, had
a duty to return the flat to its owner. The breach of the applicant's
right to peaceful enjoyment of his possessions is above all the consequence
of the tenant's unlawful conduct. The breach of Article 6 § 1 of the
Convention committed by the State and found by the Court is a procedural
one that occurred after such conduct on the part of the tenant.

30. The Court accordingly notes that Italian domestic
law allows reparation to be made for the material consequences of the
breach and considers that this claim should be dismissed.

31. The Court decides to make no award for pecuniary
damage.

B. Non-pecuniary damage

32. The applicants claimed EUR 10,000 each for
the non-pecuniary damage.

33. The Government contested the claim.

34. The Court considers that the applicants must
have sustained some non-pecuniary damage. Ruling on an equitable basis,
it awards each of them EUR 3,000 under this head.

C. Costs and expenses

35. The applicants also claimed EUR 3,000 for
the costs and expenses before the Court.

36. The Government contested the claim.

37. On the basis of the information in its possession
and the Court's case-law, the Court considers it reasonable to award
the applicants the sum of EUR 600 (EUR 200 for each applicant) under
this head (see, mutatis mutandis, Gamberini Mongenet v. Italy, no. 59635/00,
6 November 2003).

D. Default interest

38. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary objection;

2. Holds that there has been a violation of Article 1 of Protocol
No. 1;

3. Holds that there has been a violation of Article 6 § 1 of
the Convention;

4. Holds

(a) that the respondent State is to pay
each of the applicants, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the Convention,
the following amounts:

(i) EUR 3,000 (three thousand euros) for
non-pecuniary damage;

(ii) EUR 200 (two hundred euros) for legal
costs and expenses;

(iii) any tax that may be chargeable on
the above amounts;

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing
on 28 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.